Provocation - is it past its use-by-date?
The Law Report Damien Carrick On Tuesday 17/9/2002
Summary
Last week - a
Victorian judge described the defence of provocation as "anachronistic".
Its defenders say - justice is blind - the defence is useful for men
and women
alike. But critics argue that provocation seems to work in favour of one gender
at the expense of the other.
Details of the Transcript
Damien Carrick: Hallo,
and welcome.
Today on The Law Report: The defence of provocation; is it past its use-by date?
Damien Carrick:
Provocation, the so-called �jealous lover�s� defence is a partial defence, which
if successful can reduce murder down to manslaughter.
Last week, in a decision of the Victorian Court of Appeal, Justice Norman
O�Bryan described the defence of provocation as anachronistic. The case involved
a young man, Munesh Kumar, who�d murdered a former girlfriend after she
supposedly insulted his family and refused to let him into her home.
In a majority judgement, two out of three judges rejected his appeal that he
should have been allowed to put to a jury a defence of provocation. Justice
O�Bryan was one of the majority. In his judgement, he described provocation as
anachronistic and would support its abolition. He said, �I have experienced, as
I believe other judges who have presided over murder trials, unjustified jury
verdicts which could only be explained in terms of provocation.�
Well, what do we know about when and why the defence is used? It would seem very
little. Bronwyn Naylor is a senior lecturer at Monash University Law School.
Some ten years ago she did a study for the Victorian Law Reform Commission
looking at the figures on provocation.
Bronwyn Naylor: We had
about 60 cases ultimately. This is over seven years, so we�re not looking at
very large numbers, but about 60 cases where people who were charged with murder
raised provocation. And we should also note that in most cases they argued other
defences as well. So it�s actually quite hard to know whether provocation was
the primary factor. Of those, 53 of the 60 were male offenders, male-accused
people, and seven were females. So we�ve got very small numbers of women. And
what we found there was that none of the women who raised provocation as a
defence were convicted of murder; four of the seven were convicted of
manslaughter and a couple were acquitted, and so on. So by distinguishing that
situation, the male-accused some of them were convicted of manslaughter but
there were 12 out of the 53 who were actually convicted of murder. So I guess
you�d have to say that the defence, or all their defences, were unsuccessful. Of
course there are more men prosecuted for homicide, many more men than women,
that�s a common signing across the whole of the justice system, and more men
then run provocation as a defence, but men are on the whole less successful in
having their conviction of manslaughter or less.
Damien Carrick: And in
the bulk of trials where the provocation defence was run, are we talking about
some kind of relationship intimacy between the victim and the accused?
Bronwyn Naylor: Well
we�ve got cases which we classified as argument cases, so that�s where you�d
have people who are obviously having some sort of conflict, not necessarily with
a domestic or intimate relationship, but it was interesting how many of the
cases for men prosecuted for murder who were pleading provocation, their victim
was a male victim, and they were actually more likely to be successful when
there was a male victim. When they pleaded provocation in relation to a female
victim they were less successful.
Damien Carrick: So,
running the defence of provocation if there was say a bar-room brawl, was more
likely to be successful than if the accused had killed a current or former
partner?
Bronwyn Naylor: Well we
can�t be quite sure that all those cases of male victims were your classic
bar-room brawl situations, but they�re probably more likely to be just a general
antagonism, they wouldn�t have been a domestic relationship in most cases.
Damien Carrick: Of
course the risk is that the defence of provocation turns the victim into some
kind of perpetrator and lets the accused off the hook.
Bronwyn Naylor: That is
certainly a problem. I mean it�s a problem that is likely to happen, mainly
because if you look at homicides mostly occurring in the context of relationship
and in particular these sorts of intimate relationships will often be in an
intimate situation where there are no other witnesses, it�s very easy for a
person to say, Oh well, she said this, or she said that, or whatever, that this
is how we behaved. She provoked me, she taunted me, she said, I�m never going
back to you, all those sorts of things. So at that level it certainly is an
issue I think and the jury has to work out whether they believe that, the
evidence of the accused person, and sometimes the trial does become, or appears
to become, a real sort of slander fest in relation to the victim�s character and
her behaviour, and it�s often a woman victim in those sorts of high profile
cases. I guess it also does tend to say when it�s being used by men in those
archetypal cases, well men are just like this, you know, men respond badly to
being dumped, to being left, they�re dependent, that they love the woman very
much and that women need to take it on board when they decide what they do in a
relationship that in some things they are responsible and I guess that�s
certainly something that we would want to be able to challenge.
Damien Carrick: Bronwyn
Naylor, Senior Lecturer at Monash University Law School.
And the Victorian Law Reform Commission is once again focusing research efforts
in this area, to find out how the defence is used.
�
Damien Carrick: Remy Van
de Wiel, QC, is a Victorian criminal barrister. Associate Professor Jenny Morgan
teaches law at Melbourne University. The pair have very different views on the
defence of provocation. So I wondered what Jenny Morgan thought of last week�s
Kumar decision in the Victorian Court of Appeal.
Jenny Morgan: The case
involved a man killing his former partner and what it was alleged the former
partner had done was to insult him, insult his parents, and lock him out of her
house. They had actually separated, and she�d refused to let him into the house
and refused to cook him breakfast. And in that context he argued he was
provoked. And the trial judge had refused to put provocation to the jury, that
is the jury had not been allowed to consider whether he�d been provoked. He
appealed to the Court of Appeal and by a majority the Court of Appeal said the
trial judge was right not to put that to the jury.
Damien Carrick: Now
there�s nothing unusual in what you�ve just described, but one of the judges in
the majority, Justice Norman O�Bryan, in his judgement took the opportunity to
say the defence of provocation is anachronistic, and he�d actually support its
abolition.
Jenny Morgan: Largely I
think on the basis he made the comment that we no longer have a mandatory death
penalty for murder, because I guess we should point out that provocation is not
a complete defence to murder, it�s only a partial defence. It reduces murder to
manslaughter. That was particularly important where you had a mandatory penalty
whether it�s death of a life sentence. But many argue that since we no longer,
at least in Victoria, have a mandatory penalty for murder, it�s at large, we
don�t really need the half-way house of provocation.
Damien Carrick: Do you
agree with Justice O�Bryan that provocation is �anachronistic� and would you
support it being removed by parliament?
Jenny Morgan: Look, I�ve
certainly publicly expressed concern about the way provocation has traditionally
been used. In my view it�s traditionally been used by men who kill their
partners in circumstances of sexual jealousy. Men and women broadly kill in
different circumstances. If we�re talking about domestic murder, which is the
largest proportion of homicides, some 40%. If we just look at homicides between
partners rather than the killing of children, that there�s an observed pattern;
you can see it in the reported cases, that overwhelmingly men kill in
circumstances of sexual jealousy; women sometimes kill in those circumstances,
but women usually kill in response to violence, if we�re talking about domestic
murders. So men have used the provocation defence in circumstances where I
believe the provocation they�re alleging arises out of sexual jealousy, the
partner or often ex-partner, has said, I�m leaving, I don�t want to have a
relationship with you any more. Might even have said, I�m having a relationship
with somebody else. And they�ve been allowed to put provocation to a jury, and
juries find provocation in those circumstances, not always, but often enough.
And in any event my concern is that the decision by the judge that these are
circumstances that justify somebody ordinarily acting under provocation, and so
yes, I�ve been very concerned.
Damien Carrick: Remy Van
de Wiel, you�re a criminal barrister with many years� experience, what�s your
view? Is the defence of provocation anachronistic?
Remy Van de Wiel: No, I
don�t think it�s anachronistic at a all, I think it�s a reflection of human
frailty, I think it�s an opportunity for community involvement in terms of an
assessment of culpability and levels of culpability. I believe it is to some
degree, limiting in the defences that some women raise in terms of their
situation, and for that reason alone I think it should be reviewed and extended.
I think the reality of it is that in the common law we�ve been relatively
inflexible about it. In the code States, provocation exists as a defence to
assault, it also applies in the same way in the common law to reduce murder to
manslaughter in the appropriate circumstances. And it�s got to be remembered
that this is a defence which is the subject of community scrutiny. It�s not some
technical defence, there�s nothing magic about it. It�s really the application
of community values.
Damien Carrick: Can you
give me an example of when you would argue the defence has been used
appropriately?
Remy Van de Wiel: I can
remember numerous cases, I mean Masciantonio is a wonderful situation where the
deceased battered the daughter of Mosciantonio, he abused her, he stole from
her, he committed massive fraud in terms of her meagre earnings, he then
insulted her, insulted the family, and when Mosciantonio went to remonstrate
with him, he swung an iron bar and hit Mosci-Antonio, and Mosciantonio
retaliated by stabbing him.
Other cases I remember an indigenous Aboriginal woman living in a de facto
relationship. She wanted to leave the home to visit a former male partner who
was dying in hospital, the current partner wouldn�t let her. There was an
argument in the course of which she killed him. Totally proper. The defence was
not only allowed to be put, but the sentencing judge released her on a bond.
Damien Carrick: Jenny
Morgan do you accept Remy Van de Wiel�s point that often women accused are able
to shelter behind the defence of provocation and it�s often very useful as well
for women accused as it is for men accused?
Jenny Morgan: Yes, I
accept that women do argue provocation and often successful argue provocation.
But what I want us to think about is some of those women, perhaps many, I don�t
know anything about the particular case that Remy has talked about, but often I
think we need to push the bounds of self-defence, that in fact women are acting
when they�re responding to violence from a partner or ex-partner, they�re often
acting in self-defence, and I think the law of self-defence is available to
women who kill in those circumstances, but I�m not sure that it�s been pushed,
and I wonder whether we think of provocation as the defence to use in a domestic
context because men use it, in a domestic context. Rather than pushing the
bounds of self-defence, rather than really thinking through whether in fact
these women are acting in self-defence rather than provocation, because of
course self-defence is a complete defence, provocation is only a partial
defence.
Damien Carrick: So
you�re alluding there to women who perhaps have suffered from battered woman
syndrome and say after ten years of violence turn round and kill their partner,
they often rely successfully or unsuccessfully on this defence of provocation.
You�re suggesting that maybe we need to look more closely at the concept of
self-defence and develop that.
Jenny Morgan:
Absolutely. That�s my argument. It�s obviously not going to work in all
circumstances but I think that�s what we need to push, that�s what we need to
think about when women are killing violent partners.
Damien Carrick: I
understand that some time ago the Victorian Law Reform Commission did a study
and found that the ratio of women who successfully run the provocation line,
from what we can tell, is higher than men who run the same line; that would
suggest it is a useful tool for women.
Jenny Morgan: Yes, but
what that fails to consider is the circumstances. Now if men are in a smaller
proportion of cases, successfully running provocation, but in circumstances
where they�re killing out of sexual jealousy, I don�t want to make a concession
to human frailty. When women are killing in circumstances of violence, I�d be
much more likely to. Indeed we could have it as gender neutral: people killing
in circumstances of sexual jealousy does not attract me as a circumstance of
human frailty. Really what I�m trying to say is in that Victorian Law Reform
Commission study that the circumstances in which men use provocation and women
use provocation are not commensurate; to just look at the numbers fails to
consider that aspect.
Remy Van de Wiel: I
think what�s been said about women and self-defence in terms of the battered
wives syndrome is quite appropriate. The difficulty is that there are certain
restrictions on that defence, and the problem really is self-defence is Sydney
or the bush. You either get home, or you go down on murder, and that�s why
provocation is the fail-safe mechanism in terms of those circumstances. I don�t
think it really is possible to make this distinction between self-defence and
provocation so clearly. They really run together. I mean what are we talking
about? We�re talking about people reacting in terms of circumstance of fear,
anger, confusion, frustration, a whole series of emotional things that are
occurring at or about the time when they inflict the fatal wound. Now I think to
make the distinction in the way in which it�s thought to be made, Oh well, you
just extend self-defence, isn�t necessarily fair to anybody. I think that they
do run together, I think we should also consider this: should we really extend
the concept of diminished responsibility, not in the sense that it�s accepted in
other jurisdictions where that relates to mental state defences, but rather in
terms of moral culpability, and rewrite a concept of self-defence provocation in
those terms for the jury�s consideration, and that�s where I�d be very keen to
extend it. I really do believe that by removing provocation you�re removing
community involvement in terms of a situation where they shouldn�t be removed.
And I know that some judges say that you should get rid of jury trials. I don�t
know what Mr Justice O�Bryan�s views are about that, but I think we should
resist all this. I think it�s quite appropriate that we revisit provocation and
revisit it properly, but not to dispense with it. There�s no need to, I mean
they�ve extended it in New South Wales to some degree in terms of their
amendments to remove some of the former restrictions of it. It�s still quite
alive and well in the code States, and it applies much wider than it does in
Victoria. I really don�t see any need to get rid of it.
Damien Carrick: There�s
been a lot of discussion about what might be considered or not considered
provocation in different ethnic groups. The idea that different cultural groups
have different boiling points, or different red buttons. It�s a rather
controversial issue, isn�t it?
Remy Van de Wiel: I
believe we live in a multicultural community, I think people who come from a
different culture are entitled to have that taken into account in terms of
criminal culpability. I don�t believe that you can justify ritual slaughter on
the basis of custom or religious basis, and I don�t think juries have ever
bought that idea. I really think there�s too much paranoia attached with the
idea that an accused raises a defence and therefore a jury will buy it. Juries
are not silly. They tend to get things right, and if they get things wrong it�s
probably more usually as a result of a judge giving them wrong instructions than
the wrong application of the cultural values that they�re asked to impose on a
situation.
Damien Carrick: Jenny
Morgan, what�s your view, do you think that there are issues surrounding that
idea of different boiling points for different cultures?
Jenny Morgan: I think
it�s incredibly racist actually. I always go, Where�s the evidence? Show me that
dour Scots people have more, or less, self control. I think we fall into amazing
stereotypes, and we just don�t have the evidence that would allow us to reach
those conclusions. I just don�t think the evidence is available.
Damien Carrick: Are
there any cases where those kind of cultural issues have led to the successful,
as far as we know, given it�s a jury trial, that the successful running of the
defence of provocation?
Jenny Morgan: I�m going
back a while now, but the case of Dincer, a man who killed his daughter. His
daughter was having a relationship with a man, she was a young woman. He was
described as a conservative, traditional, Turkish Muslim, and in that context it
was said it was particularly offensive that she did this, and provocation was
put by the jury and presumably found by them, because he got a manslaughter
conviction. Now I go, Well what are the values of traditional, conservative
Turkish Muslim women? That�s not asked, because who�s on trial? It�s the man.
How did you know what the values of conservative, traditional Turkish Muslims
are? I have a lot of Muslim students who say they find the case outrageous. So
we really didn�t have the information, and I think Remy saying Oh we can just
trust to a jury, I think juries are human like the rest of us. We need education
in anti-racism, we need education in equality, and equality seeking responses.
And what worries me about provocation is that I�m not sure that we�re getting
that education. It�s interesting that in Kumar�s case, the dissenting judge who
would have allowed provocation to go to the jury, does say the ordinary person
is not homophobic, not racist and not sexist, and I think that�s very positive
that that�s being said. So as I say, I just think we�re seeing some signs of
change, but I�m not convinced that we are all not homophobic, not sexist and not
racist. And so I�m worried that provocation can operate to allow those values
back in.
Remy Van de Wiel: Well
I�m concerned about that view, is that what you�re saying is I don�t trust the
community, therefore I won�t let the community judge this issue because I�ll
remove this defence, I�ll leave it with the judges. And if ever there was a
group of people who by and large come from a particularly restricted background
with a cultural values in structure, it�s usually the judiciary. Now I think
it�s quite appropriate that we leave it to a body that changes with the changes
in our community, that accepts the changes of roles of women, that accepts the
changes of identity in terms of sexuality and sexual behaviour, that understands
and accepts multicultural differences, much more than the judges do. Now I think
this is a fairly fundamental difference that we have, but so be it. I think that
really this idea of structuring a concept of looking at the diminished
responsibility of the individual acting in those circumstances, in other words
rewriting a concept of provocation, would allow this to happen. I mean juries
aren�t silly, they aren�t of necessity homophobic or anti-Muslim or are
Melbourne Club members and so on, I mean they change with the circumstances.
Damien Carrick: It�s
interesting you raise the issue of homophobia; what about the so-called
homosexual panic defence, where the defence will argue that a sexual advance by
another man constitutes provocation. Justice Eames, one of the majority judges
in the Kumar case, in his judgement referred to a judgement by Justice Kirby in
a previous High Court 1997 case where he expressed concern about that defence. I
think he said the defence had been advanced by 16 accused in New South Wales
homicide trials over a two-year period. Does that strike you as appropriate, or
problematic?
Remy Van de Wiel: It
would strike me as problematic as if it was successful every time. I don�t
believe it is. I think that by and large the community would reject it. One of
the things that was raised before is how do you know what the Muslims� values
are; in terms of Mr Dinsa this would be done on the basis of expert evidence.
They would call people from his culture, the same as you�re entitled to call
evidence in terms of the battered wives� syndrome to call psychological evidence
in relation to that sort of thing. Now it would surprise me if that wasn�t the
situation that the trial judge would insist before he would let the defence go.
Damien Carrick: Jenny
Morgan?
Jenny Morgan: It�s
unclear from reporting Dincer what evidence they did rely on. I�m not a
practitioner and Rene would know, sometimes they use the evidence of
interpreters, and who is an expert. We�ve got to remember that the Muslim
community, the Catholic community, is very diverse, and should it be an
anthropologist who gives the evidence? I don�t know. Can I just make one further
comment. Remy said Look we should trust to the jury, and certainly I�ve argued
in the context of talking about the sexual jealousy provocation cases that there
isn�t much point in just abolishing provocation without also addressing judge
sentencing discretion, without also saying sexual jealousy is not a matter for
amelioration in sentence. So in that sense I don�t think we disagree.
I�m also not opposed to what seems to be being suggested which is a broad
reconsideration which the Victorian Commission is undergoing of defences to
murder. I�m not in favour of a knee-jerk, quick, let�s just get rid of
provocation. I do think the reconsideration that he suggested would be quite a
useful one, because provocation is ultimately about values. So I don�t think we
disagree on that. What concerns me is that some of the values embodied in the
doctrine have been detrimental to women, and so by all means let�s reconsider
defences to murder to ensure that we are creating a law that�s appropriate for
2002 and beyond.
Damien Carrick:
Associate Professor Jenny Morgan of Melbourne University Law School, and Remy
Van de Wiel, QC of the Victorian criminal bar.
�
Damien Carrick: The one
thing they both seem to agree on, well, sort of, is the need to re-think
defences to homicide, and that�s one of the current briefs of the Victorian Law
Reform Commission.
Well one jurisdiction that has recently tackled this thorny issue is New South
Wales. But Sydney University criminologist, Associate Professor Julie Stubbs,
says last year�s legal overhaul didn�t go far enough.
Julie Stubbs: It�s too
soon to know if the legislation has any real impact, but a lot of people are
concerned that this was a missed opportunity, that if we were going to legislate
with respect to self-defence we should have sat back and actually considered
what the debates were, particularly around violence against women, and so-called
homosexual panic, to actually address those concerns within the statutory
provisions that were introduced. These provisions don�t address any of those
concerns, so for instance, one of the primary debates that have been occurring
round self-defence in this country as in Canada and the United States, has been
that it�s too narrow and that it doesn�t allow the broad context of the
behaviour to be understood. Advocates of changes to self-defence on the whole
would have liked to have seen much more attention to thinking about for example
in the case of battered women who ultimately kill, how the whole history of the
relationship and the context in which they found themselves, might be given some
expression in self-defence, rather than what often happens, which is the focus
just on the immediate circumstances of the incident.
Damien Carrick: When
changes to the law are being considered, do you think you should only look at
say on the one hand self-defence, or on the other hand provocation, or do you
think you need to look at even wider concepts?
Julie Stubbs: I think
when we�re looking at the operation of a defence is we need to look at the way
the various defences interact with each other, and we also need to look at
sentencing provisions. So for instance, it�s arguable that when self-defence is
too narrow, or interpreted very narrowly, what we often find is people resorting
to other defences like provocation or in the jurisdictions where it still
exists, diminished responsibility, to try to squeeze their cases to fit those
kind of defences. If we had better self-defence laws it might actually resolve
some of the issues that emerge with respect to debates around provocation or
diminished responsibility.
The other avenue we have to pay particular attention to is sentencing. If in
fact we don�t pay attention to the way in which sentencing decisions are made,
what we may find for example in some of the co-jurisdiction that still have
mandatory life sentences for murder, that if we then abolished provocation, it
may lead to more and more people unjustly getting murder convictions and
mandatory life sentences.
Damien Carrick: In terms
of addressing these sorts of issues, what do you say to the idea that revisit
the concept of provocation, and maybe expand it to include a concept of
diminished responsibility in terms of moral culpability?
Julie Stubbs: OK, I
think that�s problematic in several ways. First of all, I would argue that any
consideration of redrafting provocation if provocation�s retained, should first
look at self-defence. If self-defence can be re-drafted more broadly, it might
actually open up the possibility of acquittal to some people who might otherwise
be left with arguing provocation perhaps inappropriately, or in a way that
doesn�t really suit their case. Secondly, there�s been a long debate,
particularly amongst feminist scholars, about the way in which diminished
responsibility has operated as a gender defence. That is, historically it�s been
all too easy for women�s behaviour to be pathologised, to be constructed as some
form of illness. This is part of the critique of the way in which battered
women�s syndrome evidence operates. So it�s a dangerous way to go I think, to
think diminished responsibility is a good option; I think it has damaging
consequences, or the prospect of damaging consequences. There may well be ways
that provocation can be re-drafted to better reflect both women and men�s
experiences, and that�s an open matter.
Damien Carrick:
Associate Professor, Julie Stubbs, Deputy Director of the Institute of
Criminology at Sydney University.
Damien Carrick: That�s
it for The Law Report this week. Thanks to producer Michael Shirrefs, and to
technical producer this week, Tim Symonds.
Guests on this program:
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Associate Professor Julie Stubbs |
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Associate Professor Jenny Morgan
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Bronywn
Naylor |
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Remy
Van de Wiel QC |
Presenter:
Damien Carrick
Producer:
Michael Shirrefs
The Law Report homepage (link to)